Delta Airlines used federal transparency laws to demonstrate how cozy the federal Export-Import Bank is with aircraft maker Boeing — and it appears officials at Ex-Im then tipped off Boeing about Delta's open-records request.
Delta is suing the Export-Import Bank, arguing that the agency is ignoring its mandate to consider how it harms U.S. companies. When Ex-Im subsidizes Air India's purchase of a Boeing jet, for instance, this helps Boeing, but it also helps Air India — thus harming Delta.
Congress requires Ex-Im to study the economic impact of its export subsidies. Delta charges that Ex-Im's economic impact policy doesn't meet Congress's mandate and doesn't actually take into account the harm to U.S. airlines of subsidizing foreign airlines.
Ex-Im, over email and in private meetings, gave Boeing a central role in crafting the economic impact procedure. This is a bit perverse when you think about it: to study how jumbo jet subsidies might hurt airlines, why do you ask the jetmakers instead of the airlines?
We know about Boeing's intimate role in the rulemaking process only because lawyers for Delta, at the firm Kellogg, Huber, Hansen, Todd, Evens & Figel, filed a Freedom of Information Act request in October 2012, asking for "all communications between" Boeing and Ex-Im "regarding the Bank's proposed Economic Impact Procedures …"
More than two years later, Ex-Im delivered these documents to Delta's lawyers, who have since petitioned the court to include the relevant emails in the case's administrative record — in effect, the evidence that a judge should consider.
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